The Study on Free-Rider Act of Collective Agreement Act: Focus on the U.S.A. Agency Shop Clause

• Main Authors: Jo-Wen Li, 李若雯
• Other Authors: 王能君
• Format: Others
• Language: zh-TW
• Published: 2019
• Online Access: http://ndltd.ncl.edu.tw/handle/3eez3v

碩士 === 國立臺灣大學 === 科際整合法律學研究所 === 107 === The “Free-rider Act” proviso set out in Article 13 of the Collective Agreement Act, which has been implemented in Taiwan since 2011, has its origin in the “agency shop clause” in the US union security clause. This study aims to explore the background and reasons behind the enactment of the Free-rider Act in Taiwan as well as the controversy in its application. To better understand the Free-rider Act, the concept of “agency shop clause”in the US is also incorporated with its origin and development discussed in this study. The formation and origin of the agency shop clause as well as its sources in the US Labor Law are discussed in chapter two of this study, where an analysis of major precedents throughout the history of the Supreme Court of the US is made to demonstrate how the significance of the clause has changed over time in the US. The focus will then be shifted back to Taiwan in chapter three. To better perceive the background of the enactment of the Free-rider Act in Taiwan, this chapter starts with an overview of the history and overall background behind the collective labor law covering the Japanese rule to post-Martial Law period, following a more detailed review of the history of the collective agreement laws in Taiwan as well as the formulation and evolution of the Free-rider Act. The application of the Act after enactment and the controversy in application will then be discussed by listing the clause of the Act set out in the collective agreements in practice following a detailed case study on the application of the Act by China Airlines in 2016. In chapter four, a comparison is made between the agency shop clause in the US and the Free-rider Act in Taiwan in terms of their core controversy, the systems behind and the legislative level to which they belong. Based on the comparison, this study not only elaborates on the constitutionality and application of the Free-rider Act in Taiwan, but also proposes solutions to potential controversies in its application. The study concludes in chapter five that the Free-rider Act can effectively meet its purposes of preventing improper competition among labors and promoting right to bargain collectively. Though the Act constitutes intervention in freedom not to associate of individual labor and freedom of contract between employers and individual labor, it does not constitute a breach of proportionality. The Act can therefore be deemed constitutional and applicable in Taiwan. However, against the backdrop of anti-communism and implementation of Martial Law, “company unions” have been rampant in Taiwan. This study found that it is indeed possible for employers, after entering into Free-rider Act with labor unions, to enter into collective agreements of the same labor conditions with company unions, which, in legal theory, are also entitled to the right to bargain collectively. This phenomenon has made labors real “free riders”, and has in turn suppressed labor unions with the real intention to bargain. In such cases, the Dispute Resolution for the Unfair Labor Practices can be a solution.